Appeal, No. 494, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, Feb. T., 1957, No. 76, in case of John A. Rykaczewski et ux. v. Kerry Homes, Inc. Order affirmed.
M. Carton Dittmann, Jr., with him Edward C. Bauer, Jr., Manus McHugh, and Ballard, Spahr, Andrews & Ingersoll, for appellant.
Robert W. Tredinnick, with him Smillie, Bean, Davis & Tredinnick, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 462]
The jury in this case returned a verdict for plaintiffs. Defendant corporation filed this appeal from a refusal of motions for judgment n.o.v. and for a new trial.
This appeal arises out of a suit in assumpsit upon a written agreement for the purchase of a home; the agreement was prepared and executed by Hilltop Realty Company as agent for seller. The contract provided that all deposit monies be held in a separate escrow account, until all the terms of the agreement had been met. Hilltop was authorized by the purchasers to make application for title insurance and to do the conveyancing. The agreement also provided that Hilltop was to have the sole right to procure, on behalf of the purchasers, a 30 year mortgage in the amount of $14,500 at 4 1/2% interest; and that in the event that a mortgage such as that could not be procured,
[ 192 Pa. Super. Page 463]
the deposit would be returned to the purchasers and the agreement be null and void.
Financing of the sale was unavailable and the plaintiffs demanded the return of the down payment. The principal officer of the Hilltop Realty Company, it seems, absconded with the escrow funds. Plaintiffs, in order to recover their down monies, entered suit against Kerry Homes, Inc.
Defendant, in its answer, averred a subsequent oral extension of the settlement date, that it was ready to secure a mortgage, and that Hilltop was plaintiffs' agent for the purpose of securing a mortgage. A counterclaim was filed for the deposit under the liquidated damage clause on the ground that plaintiffs were unwilling to perform and also for extras expended on the house at the request of the plaintiffs. Upon trial of the case ...